Adequate Provision in a Will: When can a Will be challenged?

It was recently highlighted in the Sydney Morning Herald, that it is incredibly difficult to design a Will that is completely free of the risk of being challenged. The article highlights the increasing number of people in Australia that are challenging a loved one's Will on the basis of a lack of adequate family provision, claiming that they have not been adequately provided for. Unfortunately many people, owing to the complexity of the law in this area, do not understand the rules concerning mounting a challenge to a Will on the basis of a 'lack of provision'.

 

At Szabo & Associates Solicitors, our experience of advising on the drafting and interpretation of Wills gives us considerable insight into the practical impact of the law in this area. If you are considering challenging a Will where you believe you have not been adequately provided for, it is important that you understand who is eligible in law to challenge the terms of your Will, and on what grounds their challenge may be based.

Can a Will made in New South Wales be challenged on the basis of a 'lack of provision'?

There are few grounds on which the terms of a Will can be challenged. An issue that has been receiving interest in recent times is the question of adequate provision for surviving family members. Different territories have different rules for how surviving family members can challenge the terms of a Will, where they believe their interests have not been sufficiently protected.

Under the Succession Act 2006, it is possible for surviving family members to challenge the terms of a deceased's Will on the basis that 'adequate provision for the proper maintenance, education or advancement in life' was not made.

How are challenges brought?

If there is to be a challenge to a Will on the basis of a 'lack of provision', the court will need to be asked to grant a Family Provision Order. This is essentially the judgment of a court that, whatever the terms of the Will in question, the interests of the individual concerned have not been adequately protected. If granted, this will then have a material effect on how a deceased's estate is distributed among their surviving relatives.

It should be noted, however, that in considering a challenge to the term of a Will on the basis of a 'lack of provision', the court will only have concern for a limited number of issues in respect of certain people.

Who can challenge a Will for a 'lack of provision'?

The 2006 Act stipulates that only 'eligible persons' may challenge a Will for a lack of provision. This includes:

• The wife or husband of the deceased on their death;
• The person whom the deceased was living with, in a de facto relationship when they passed away;
• The deceased's child;
• The former wife or husband of the deceased;
• Someone who was at some point dependent on the deceased, and at any time was a member of the same household;
• A grandchild of the deceased who was in some way dependent on them; or
• Someone whom the deceased was living with in a close personal relationship when they passed away.

'De facto' relationships are defined in the Interpretation Act 1987 as being a relationship as a couple living together, but are not married to one another or related by family.

You will only be able to mount a challenge to the terms of a Will if you fall into one of the classes of persons listed within the 2006 Act.

What will a court consider before granting a Family Provision Order?

Even if an individual is able to meet the 'eligible person' criterion, a court will only have regard for certain things in considering whether or not to grant a Family Provision Order: that your maintenance, education or advancement in life is properly provided for. It is important to understand that the matters that a court is permitted to take into consideration, when dealing with an application for a Family Provision Order to be made, are heavily governed by statute. In considering whether such matters have been suitably provided for, a court will have regard for only those things listed in the Succession Act. These include:

• Your character and conduct before and after the deceased's death;
• Any contributions you made to the deceased's property or welfare;
• The nature of any obligations or responsibilities that the deceased owed to you;
• Any contribution(s) that you made to the deceased's estate;
• Your financial circumstances, both present and future; and
• Anything else that the court considers important in the circumstances.

It must be borne in mind that the court will only permit a legal challenge to the terms of a Will, by making a Family Provision Order in your favour, where it is convinced that it would be right and just to do so in the circumstances – the court will however need to balance your wishes against those who would also stand to benefit under the terms of the Will.

Challenging the terms of a Will for a lack of provision is not only a complex exercise, but also an incredibly emotional time for all concerned. It is difficult to determine whether or not a legal challenge will be successful in one or another instance. The success or failure of a legal challenge will always depend on the quality of evidence supporting a challenge, and the ability of your legal team to apply the law effectively. It should also be borne in mind that challenging the terms of a loved one's Will may cause a significant degree of damage to familial relationships. As such, the decision to do so must be made with the benefit of measured consideration and expert advice.

Contact Us About Challenging, Writing or Updating a Will

If you are interested to know more on how to challenge the terms of a Will, speak to the team at Szabo & Associates Solicitors now. We are very familiar with the rules and processes for challenging a Will in New South Wales. We will use our intimate knowledge of the law, and familiarity of the processes involved to provide you with expert legal advice and representation on challenging the terms of a Will. Fill in our online contact form to get in touch.